Open Justice on Trial?

This week sees the start of a terrorism trial that has already been the subject of much controversy between proponents of the long held principle of open-justice, the media and the government.

The trial, in which the two Defendants are accused of offences pursuant to the Terrorism Act 2006, was originally (and most unusually) due to take place entirely in secret and with the identity of both Defendants concealed. This followed an application of the Crown, heard by Mr Justice Nicol on 19 May 2014, at which he ordered that:

The entirety of the criminal trial of the Defendants should be private (ie with the public and media excluded) and publication of reports of the trial prohibited;

The names and identities of the Defendants should be withheld from the public and publication of their names/identities in connection with the proceedings also prohibited; and

The publication of reports of the hearing in open court on 19 May 2014 and the open judgment handed down on that day postponed until the conclusion of the trial or further order.

In reaching his decision part of the evidence upon which he relied was also considered in secret.

Guardian News and Media Limited appealed that decision and the Court of Appeal handed down its decision on 12 June 2014. While the full reasoned judgment has been reserved, Lord Justice Gross on behalf of himself, Mr Justice Simon and Mr Justice Burnett, made it clear that they had come to a fresh decision based on the material placed before them. In doing so they sought to balance the principles of open justice with issues of national security, stating that:

“Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system; exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced… However, it was also common ground there are exceptions…

National security is itself a national interest of the first importance and the raison d’etre of the Security and Intelligence Agencies (“the Agencies”), who themselves operate within a framework of law and oversight. For the Agencies to operate effectively, at least much of their work is secret and must remain so as a matter of necessity. From time to time, tensions between the principle of open justice and the needs of national security will be inevitable”.

In considering the facts of this case, they took the view that it was “exceptional” and that there was a “significant risk – at the very least a serious possibility” that the administration of justice would be frustrated were the terrorism trial to be held in open court. However, they did not consider that the facts of this case necessitated total secrecy and held that the following elements of the trial could be heard in open court:

The swearing in of the jury;

Reading the charges to the jury;

At least a part of the Judge’s introductory remarks to the Jury;

At least a part of the Prosecution opening;

The verdicts; and

If any convictions result, sentencing (subject to any further arguments on this).

They also addressed the issue of whether or not journalists could be permitted to attend the bulk of the trial, but excluded as needed and when specific matters were considered, and on what terms. The court held that “while the terms may need refinement” it contemplated that:

A small number of accredited journalists drawn from the media parties to these proceedings could attend the trial;

Notes could be made but could not be taken away at the end of the day/session but instead would be held securely until the end of the terrorism trial;

A transcript of the trial (excluding a few matters) would be available at the conclusion of the proceedings in connection with any further consideration of publication;

An order dealing with this should be “tailor made” to this unusual situation.

The court also lifted the anonymity order meaning that both Defendants have now been identified.

It remains to be seen how this is going to work in practice, not least in respect of the admission of only “accredited journalists” to the trial, and where the journalists will not know until the end of the trial, what they can report nor indeed in what detail.

What is clear however is that how it plays out is likely to be of great significance for future trials of this nature.

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